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socrateaser, Lawyer

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our dog has been accused of out of control behavior on one

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our dog has been accused of out of control behavior on one occasion while on private property that I had permission to be on and complaintant was not a member(golf course0 2 years previously we had a complaint by neighbor that she approached their dog{never made contact} we are now being accused of a 3rd offense oe not having a Pa state dog license-which we have had ever since she was a pup-a LIFETIME license== These people have a very vicious German Shepard-not sociable due to attack training-and have continued to harass us- my question is ==how can I have the dog license issued withdrawn since the dog officer refuses to return my calls-aned how many complaints must be filed BEFORE going before the magistrate--I]ve already appealed not guilty -paid over 300.00 in fines and wonder if the license complaint be withdrawn-{as it is incorrect-and so stated in Pa Dog incense info-do I still have to appear in court and tesrify?? This is becoming very upsetting. It wasmy understanding that only after 2 complaints a court hearing was required. My dog has been thru complete obedience training and also has received her Citizenship Award thru Canine College -and is now ready to be a therapy dog-I want to use her at Childrens hospitai for Cerebral Palsy Unit. My grandson has the condition and we have already used her a s his companion.

You seem to be combining a law enforcement issue with a homeowners association issue. If you have a license for the animal, then you cannot be found guilty for not having a license. And, if I understand your facts, then you have been found not guilty.

Re the homeowners association, if you paid fines, and you did not protest those fines and sue to recover them in court, then you may have waived your rights to do so -- dependent upon the amount of time that has passed. Under 68 Pa.C.S.A. § 5302(a)(11), a planned community association has the power to levy fines "after notice and an opportunity to be heard." This suggests that you have the right to due process of law, and that means that if the hearing under which you were fined was not held in some sort of objective manner, you could sue for a writ of mandate in the Court of Common Pleas and have the court determine whether or not your due process rights were violated. The fundamental basis of due process is notice of an action pending; opportunity to appear and defend; a decision by a neutral and disinterested party based upon evidence admitted into a records.

Homeowners associations typically can be found to have violated due process because they do not have an adequate record of the proceedings, and there is rarely an attempt to make a decision based upon competent evidence.

The botXXXXX XXXXXne, however, is that if you pay the fines, rather than refuse to pay and then sue in court (or arbitrate, if your declaration of covenants provides for arbitration), then you may waive your rights to object to what may well be an invention by your adversaries and a decision by a board that either doesn't know or does care about the truth.

This is a complicated subject, however I do understand it. Please let me know if I can be of further assistance.

I appreciate your response- #1 there is no assn. involved here--i.e violation of pa. dog law #2 I am still found guilty because the dog warden will not respond to my substantiation of the fact that my dog has a lifetime license-{ I am advised that he is not allowed to speak to me since we are appearing in court All he needs to do is find that info on-line and remove the charge] I have received a date for the hearing but in order to defend myself I have to [-and have already]- paid both fines FIRST- within ten days . so -- my point is as follows--- if what I read is correct ,the ,number of complaints required to initiate a court proceedind is 3- consequently the other 2 complaints could be handled without a hearing if we could handle the "license issue' by dealing with the facts as stated. the other 2 complaints can be handled by minimal fine-and can be dealt with by discussion and understanding among neignbors .. everyone erred in this situation. All dogs were out of control-the difficult neighbors with the attack dog however will have their day since it is illegal to harbor a n attack dog on others property. however-it will not be me or my family who will file the complaint-they have been reckless for 2 years and I have refused to complain. i'm just very careful-prepared-and prefer to be patient -and work with my dog. However-I've never been in court before-am 75 years old-and don't need such ignorance from others. I am trying my best to be a decent neighbor and am very responsible with my dog-I've raised dogs forever as well as 6 kids and multiple animals-still raise and ride horses and work with the community daily. THANKS FOR YOUR RESONSE P.S there was no damage done to any one or injury to dogs or people- just brief confrontation. MUCH ADO ABOUT NOTHING REALLY-BUT $300 + fines for our family

code # XXXXX(lead)--Summary trialIstcharge--Application dog license/ fees.penalties== pd collateral 127.00 2nd charge--code # XXXXX(=Lead) -Confinement and Control-Firmly secured by Collar or Chain-- 177.00 pd As I said before-our dog has a lifetime license-as received and paid for upon purchase-with supporting papers and listed on -Pa Dog Law on-line- Pike County . Per 2nd charge- both dogs were off property but we were not trespassing-other dog was & is not allowed on said property. Also-in regards XXXXX XXXXX was approached from behind and lost my grip on her leash when surprised by their intrusion. Retrieved her quickly-no one hurt or even touched-however the encounter was definitely with intent . I feel I'm guilty before innocent due to this process. I really appreciate your help- Thanks -I know tthis is a bit of nothing for most but justice is still alive and well??? Chris XXXXX

Finding the precise law for Pennsylvania (the place where the law of our nation actually began), is very difficult, because the state is the only jurisdiction in the USA that does not have a "codified" listing of its laws -- or an official state publication identifying those laws. But, after a diligent search of my proprietary legal research service, I have found the relevant laws. I will reproduce them below (in pertinent part) for your convenience, so that I can discuss the possibilities.

BEGIN LAWS TEXT

Title 3 P.S. § 459-201

(a) Except as provided in subsection (b), on or before January 1 of each year, the owner of any dog, three months of age or older, except as hereinafter provided, shall apply to the county treasurer of his respective county or an agent under section 200(a), [FN1] on a form prescribed by the department, for the appropriate license for the dog. The application and license certificate shall state the breed, sex, age, color and markings of the dog, the name, address and telephone number of the owner and the year of licensure. The application shall be accompanied by the appropriate license fee as follows:

(1) For each neutered male dog and for each spayed female dog for which the certificate of a licensed doctor of veterinary medicine or the affidavit of the owner is produced, the license fee shall be $5. (2) For all other male and female dogs, the license fee shall be $7.

(b) The owner of any dog three months of age or older which has been permanently identified may apply to the county treasurer of his respective county or an agent under section 200(a), on a form prescribed by the department for a lifetime license for such a dog. Except as otherwise provided in this act, a dog which has been issued a lifetime license shall be required to wear a license tag. The application and license certificate shall state the breed, sex, age, color and markings of such dog, the type and number of permanent identification and the name, address and telephone number of the owner. The application shall be accompanied by the appropriate license fee as follows:

(1) For each neutered male dog and for each spayed female dog for which the certificate of a licensed doctor of veterinary medicine or the affidavit of the owner is produced, the lifetime license fee shall be $30.(2) For all other male and female dogs, the license fee shall be $50.(3) For Pennsylvania residents 65 years of age or older and persons with disabilities: (i) For each neutered male dog and for each spayed female dog for which the certificate of a licensed doctor of veterinary medicine or the affidavit of the owner is produced, the license fee shall be $20. (ii) For all other male and female dogs, the license fee shall be $30.

(c) A person who violates this section commits a summary offense and, upon conviction, shall be sentenced to pay a fine of not less than $50 nor more than $300 for each unlicensed dog. Fraudulent statements, including those related to the breed of the dog, failure to pay the appropriate fee or failure to update records, including address and contact information, within 120 days of moving constitute a violation. The burden of proof shall be the same as under section 802.

Title 3 P.S. § 459-305

(a) It shall be unlawful for the owner or keeper of any dog to fail to keep at all times the dog in any of the following manners:

(1) confined within the premises of the owner; (2) firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured;(3) under the reasonable control of some person, or when engaged in lawful hunting, exhibition, performance events or field training."

Title 3 P.S. § 459-903

(a) Unless otherwise provided under this act, a person who violates a provision of Articles II through VII or a rule or regulation adopted or order issued under this act commits the following: (1) For the first offense, a summary offense and shall, upon conviction, be sentenced for each offense to pay a fine of not less than $100 nor more than $500 or to imprisonment for not more than 90 days, or both.

(c) Upon prior authorization and approval of the district attorney for the county in which the proceeding is held, a State dog warden may be represented in any proceeding under this section by an attorney employed by the Office of General Counsel."

Title 3 P.S. § 459-802

(b) In any proceeding under this act, the burden of proof of the fact that a dog has been licensed, or has been imported for breeding, trial, hunting, performance event or show purposes, or that a dog is under the required licensed age of three months as hereinbefore provided, shall be on the owner of such dog. Any dog not bearing a license tag shall prima facie be deemed to be unlicensed except as provided under this act. It is unlawful for any person dealing in and with dogs, to use a false or fictitious name unless such name is XXXXX XXXXX the Commonwealth.

END LAWS TEXT

Discussion.

1. Title 3 P.S. § 459-201(b) requires that a dog must be wearing its lifetime license tag, in order to avoid violating the law. Having a license is insufficient, by itself, to avoid the violation. I must assume that you would not have been cited for a violation of the license law, unless the dog did not have a tag. If the dog was wearing the tag, then you are not in violation of the law, which means you can plead not guilty and then it becomes the obligation of the state to prove that you are in violation.

This is where things get a little weird. Old laws frequently fail, because of new laws, and the legislature never amends them, because no one every finds the holes. No one, that is, except me.

Title 3 P.S. § 459-201(c) describes a violation of the license law as a "summary offense," and goes on to explain that the "burden of proof" is as foundin Section 802 -- which makes it the dog owner's burden to prove that he/she has the license and has not violated the law.

The result we reach today supports the basic tenet of criminal law that there is a continuing presumption of innocence. Commonwealth v. Bonomo,396 Pa. 222, 151 A.2d 441 (1959); see Commonwealth v. Hilbert,476 Pa. 288, 297, 382 A.2d 724, 729 (1978) ("[A] state carries a never-shifting burden of proof beyond a reasonable doubt of all the elements of a crime, such elements being contained in either statutory or common-law definitions."); Turner v. Commonwealth, 86 Pa. 54, 74 (1878) (the burden of proof never shifts but rests with the prosecution throughout); Commonwealth v. Wagaman,426 Pa.Super. 396, 401-02, 627 A.2d 735, 737 (1993) (same). See also Hankerson v. North Carolina,432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Mullaney v. Wilbur,421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, supra. "The Due Process Clause of the United States Constitution prohibits placing a burden of proof upon a criminal defendant to negate an element of the crime with which he or she is charged." Hilbert, 476 Pa. at 294, 382 A.2d at 727 (citing Mullaney, supra). There can be no burden on an accused to disprove an element of the offense. Loccisano, 243 Pa.Super. at 537-39, 366 A.2d at 284. Furthermore, "[t]he due process burden of proof applies to summary offenses as well as to other criminal charges." Wagaman, 426 Pa.Super. at 401, 627 A.2d at 737 (citing Commonwealth v. Karl,340 Pa.Super. 493, 490 A.2d 887 (1985)). See Commonwealth v. Crockford,443 Pa.Super. 23, 660 A.2d 1326 (1995) (Cirillo, J., concurring and dissenting).

As can be seen by the quoted case law, the burden of proof cannot be shifted onto you, as the owner -- and that burden is for the state to prove its case beyond all reasonable doubt.

So, if you are able to explain this to the judge, and then deny the charge, then the officer who cited you must prove beyond all reasonable doubt that the dog is not licensed and that the dog was not wearing the tag at the time of the citation. And, if you testify that the dog was wearing the tag, then the issue becomes your word against the officer's, and if the judge is an impartial jurist, then he/she will have no alternative but to find you not guilty, because conflicting testimony by two witnesses, without anything more, does not rise to proof beyond all reasonable doubt.

2. Title 3 P.S. § 459-305(a)(2) requires that the dog must be chained or secured while on an owner's premises, so that it cannot stray. If your dog was not so chained or secured, while on your premises, then you are in violation of the law. If you were outside the premises of your property at the time you were cited, then you have not violated this law, because the law only applies to dogs while on the premises of the owner. Moreover, if the dog did not stray off your land, when observed by the officer, then you are also not in violation of the law, because subsection (a)(3) of the law requires that there is no violation of the law while the dog is under the "reasonable control of some person." So, even if you were not holding the leash at the time of the alleged offense (which would fall to the officer to prove beyond all reasonable doubt -- and, unless he/she took a video, the officer won't be able to do), then as long as the dog was under your reasonable control, which can be shown by your simply testifying that the dog was by your side and not going anywhere or doing anything suggesting a lack of control -- then you have not violated the law.

There is one more legal defect in the law. The state has the burden of proof, and that means the district attorney for the county. See Title 3 P.S. § 459-903(c), above. An officer cannot argue the law before a court. The officer is only a witness, and without the presense of the DA or an authorized representative attorney from the Office of the General Counsel, there is no one to represent the state at trial and you can move for dismissal on grounds that as the state is unrepresented, it is also not prepared to proceed with the prosecution, because a judge cannot, in compliance with due process of law, represent the state and remain an unbiased decision maker. Therefore, the case must be dismissed, because there is no one to call any witness for the state.

After reading all of the above, you're probably wondering where I came up with all of this stuff! All I can say is that I have invalidated laws like these in the past, and so, while this probably required more than an hour of my time, I decided to do it, anyway, because...well, because I hate government authorities who swing their badges around to punish people when they have nothing better to do.

I also realize you were probably hoping for a simple way to avoid liability. There is nothing simple about beating the government in one of these types of BS cases. You will have to review my comments here until you thoroughly understand the legal principles involved, and then testify and argue to the judge that the law is unconstitutional as currently enacted, that you did not violate any of the alleged laws, that the state bears the burden of proof beyond all reasonable doubt to prove otherwise -- and that there is no representative of the state to prosecute the case, so the court must dismiss, because the officer cannot do so.

With all of the above, you could still lose. Small-fry judges don't know the law, and frequently don't care. They like throwing their weight around, too, and the judge wants to collect money for the government. So, despite my exhaustive review of your circumstances, your ability to prevail largely depends on your ability to argue the law and testify competently -- and upon the judge's impulse to actually behave like a judge, rather than a dictator. Once again, I've been through this before, many times. Sometimes I win at trial. Other times I have to appeal, so as to get the case in front of a judge that actually will behave like a judge. You may not have the energy for all of this.

The one thing that I can say about all of this: I have never lost one of these cases. Eventually, an appellate judge will have to admit that the law is defective and that the defendant must be found not guilty.

If you want to be that defendant, then you'll have to try to rise to the occasion.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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